1

I. Introduction: History & Background

I. Introduction: History & Background

In May, 2010, Wisconsin enacted a shield law protecting confidential sources and newsgathering materials. The act provides journalists with an absolute privilege to withhold confidential source information and a qualified privilege to protect from disclosure of other newsgathering information. Wis. Stat. § 885.14. There have been no state court decisions interpreting the shield law.

Journalists in Wisconsin have a qualified privilege against testifying in both civil and criminal proceedings. This court-recognized privilege, based on both the state and federal constitutions, applies regardless of whether the journalist obtained the information from a confidential or non-confidential source.

I. Introduction: History & Background

Note: In 2011, West Virginia enacted a statutory shield law providing strong protection for reporters to refuse to disclose the identity of confidential sources, and documents or other information that could identify confidential sources. W. Va. Code § 57-3-10.

Generally speaking, the status of the reporter's privilege in West Virginia is strong. Although the contours of the privilege are not as developed as they are through caselaw in other states, and there is no statutory shield law, the Supreme Court of Appeals of West Virginia has fashioned a strong privilege to protect reporters, especially in civil cases. Because of the strength of the privilege, incidences of reporters being jailed or fined over privilege issues have been exceedingly rare in West Virginia.

I. Introduction: History & Background

Kansas adopted a shield law in April 2010. See Kan. Stat. Ann. § 60-480 - 60-485 (2017). The case law governing actions in the state courts is poorly developed. In the federal courts, the decisions of the United States Court of Appeals for the Tenth Circuit control. These decisions recognize and apply a relatively strong qualified privilege.

I. Introduction: History & Background

Virginia does not have a shield law, but courts recognize a reporter's privilege based on the First Amendment to the U.S. Constitution. A court faced with a claim of privilege must perform a balancing test, taking into account (1) whether the information sought in the subpoena is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.

I. Introduction: History & Background

Relying on the United States Supreme Court's decision in Branzburg v. Hayes, the Ninth Circuit Court of Appeals offers reporters a relatively broad qualified privilege from compelled disclosure. It has found that in the ordinary civil case the litigant's "interest in disclosure should yield to the journalist's privilege." Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir 1995) (Shoen I). The court also has interpreted the role of the media broadly, declaring that "what makes journalism journalism is not its format but its content." Shoen v.

I. Introduction: History & Background

Idaho does not have a shield statute. Attempts to invoke the protections of the reporter's privilege have been based on constitutional and common law grounds and Idaho courts have developed a very unsettled relationship with the reporter's privilege. In the earliest consideration of the privilege following the U.S. Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the Idaho Supreme Court rejected the privilege, stating that no such privilege had been recognized by the U.S. Supreme Court in Branzburg. Caldero v.

I. Introduction: History & Background

Since the 1973 enactment of the "Free Flow of Information Act," Nebraska has had one of the broader, more absolute shield laws in the nation. Nebraska's shield law has generally been effective in limiting the number of subpoenas issued to reporters and, when such subpoenas have issued, has worked well at the trial court level to impose meaningful limits on the scope of testimony which can be compelled from reporters. The State's appellate courts have not addressed or dealt with shield law issues.

I. Introduction: History & Background

There is no statutory shield law in Vermont. Accordingly, the following consists of general guidelines for contesting news media subpoenas pursuant to Vermont's Rules of Civil Procedure and Vermont jurisprudence construing the United States and Vermont Constitutions, and Vermont common law.

I. Introduction: History & Background

The Tenth Circuit, and the federal district courts within the circuit, have recognized a qualified reporter's privilege under the First Amendment, that extends even to published information. Although the Tenth Circuit has twice articulated a four-part test to define the contours of the reporter's privilege, it has yet to apply those factors itself to a particular set of facts.

I. Introduction: History & Background

In Illinois, reporters have a statutory qualified privilege protecting their sources, whether confidential or nonconfidential, from compelled disclosure.